Andrews v. Viraldo , 1915 Tex. App. LEXIS 551 ( 1915 )

CARL, J.

L. F. Viraldo sued Frank Andrews, receiver of tbe St. Louis, Brownsville & Mexico Railway Company, for tbe value of a mare and certain household goods injured in shipping tbe same from Corpus Cbristi to McAllen. It is charged that by the rough handling of said property, jerking and jolting same, the household goods were broken and damaged, and the mare was thrown down, bruised, and injured to such an extent that she died about two weeks later as a result of the injuries received. Her value is placed at $150, and was proved to be such at McAllen at the time of her loss. No question is made as to the appellant’s liability for the household goods, amounting to $39.50; but the sole assignment of error complains of the refusal of the trial court to instruct a verdict for the defendant in so far as the recovery for the loss of the mare is concerned. It is claimed that the uncontradicted evidence shows that appellee was guilty of contributory negligence in failing to have the mare treated by a veterinary surgeon after it was known she was injured, and in working her after her arrival at McAllen in her injured condition. The case was tried by a jury, and judgment was for appellee.

[1,2] Appellee testified that he did not know that there was a veterinary surgeon to be had there, and that he had a stay chain fixed so that this mare was doing nothing more than holding up her part of the wagon tongue when he worked her. As soon as he discovered that she was not able to work he unharnessed'her and took her out, using one horse and a spring wagon to move his goods. The question of whether Viraldo was negligent under the circumstances was one for the jury. The court did not charge the jury, and, if appellant desired a special charge submitting the matter of contributory negligence, he should have requested same. It must be assumed that all the evidence was considered by the jury, including that which would tend to show contributory negligence.

The judgment is affirmed.